Madras High Court
E.N.Palanisamy vs Meenakshi ... 1St on 16 December, 2015
Author: S.Vimala
Bench: S.Vimala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 16.12.2015
CORAM:
THE HONOURABLE MRS.JUSTICE S.VIMALA
Crl.R.C.(MD) No.275 of 2007
E.N.Palanisamy
Director,
Sri Moogambikai Spinning Mills,
Velvarkottai Village,
Vadamadurai,
Vadamadurai Taluk,
Dindigul District. ... Petitioner/Accused No.1
Vs.
1. Meenakshi ... 1st Respondent/Complainant
2. State
Rep. by SI of Police,
District Crime Branch,
Dindigul. ... 2nd Respondent/Petitioner
Criminal Revision Case filed under Section 397 r/w. 401 Cr.P.C.
against the Judgment dated 10.03.2006 made in Crl.R.P.No.17 of 2004 on the
file of the learned Additional Session Judge, Fast Track Court, Dindigul.
!For Petitioner : Mr.S.Silambanan
for Mr.S.Karthick
^For R1 : Mr.S.Jeya Singh
For R2 : Mr.P.Kandasamy,
Government Advocate
:ORDER
?For who would bear the whips and scorns of time, the oppressor?s wrong the proud man?s contumely, the pangs of despised love, the law?s delay? - Shakespeare in Hamlet.
Justice ; Social, Economical and Political is the first promise of the Constitution of India which claims pride in being the 'largest democracy' in the world. Magna Carta in 1215AD provides to no man will we deny, to no man will we sell, or delay, Justice or Rights. In the case of Chajju Ram V. Radhey Shyam, reported in AIR 1971 SC 1367, the Honourable Supreme Court refused to permit a re-trial after a period of ten years having regard to impact of delay involved in the fair trial of the case. Speedy trial is a ?sine qua non? for the effective and efficient criminal justice system. The right to speedy justice has been held to be a fundamental right under Article 21 of the Constitution of India, which is consistent with the concept of fair and impartial trial. It would be mockery of justice if this simple case of the prosecution under Sections 147, 148, 341 and 506(ii) IPC is prolonged for a period of 19 years.
2. Under the given set of facts and circumstances, this Court has to find out the way to quicken the process of litigation, without detrimental to the rights and interest of both sides.
3. Meenakshi, who is the defacto complainant, who is the Managing Director of the Company named East India Corporation, could not be examined as a witness, in respect of an occurrence that took place on 12.09.1996, at about 4.00 p.m. 3.1. Alleging that the revision petitioners and certain others forged documents as if the lands in S.No.2751/2 Dindigul belong to one Eswaran and have plotted the same as house sites and were taking steps to sell the land, which actually belonged to the defacto complainant, a complaint was lodged by Meenakshi.
3.2. It is further alleged that on 12.09.1996, when the said Meenakshi along with one Kandasamy and Ramesh went to inspect the property, the revision petitioners along with their counterparts and 20 men abused the defacto complainant and threatened her with dire consequences. The Police registered a case against the revision petitioner herein and E.N.Chennimalai(A2) Eswaran (A3), S.K.Syed Ismail (A4) and Raja (A5) and against two others, under Sections 147, 148, 120(b), 447, 506(ii), 341, 477 and Section 7(i)(a) of Criminal Law Amendment Act. Charge sheet was filed under Sections 147, 148, 341 and 506(ii) IPC. Case was taken on file in C.C.No.125 of 1998 before the Judicial Magistrate No.2, Dindigul, which on transfer was taken on file by Judicial Magistrate No.I, Dindigul and renumbered as C.C.No.165 of 2000.
3.3. During trial, the defacto complainant could not be served at the address given in the complaint. VAO gave the statement that the defacto complainant used to reside in Chennai for some times. Summons were taken to Chennai address also, but, no summon could be served. On the public prosecutor making an endorsement that the defacto complainant could not be served, the examination of other witnesses were completed and Judgment pronounced. By the Judgment dated 12.11.2003, six accused persons were acquitted, the one having died during the pendency of the trial.
3.4. The defacto complainant preferred criminal revision in R.C.No.17 of 2004 before the District Judge, with a delay of 316 days.
3.5. On 10.03.2006, the Criminal Revision Petition was allowed on the ground that summons sent to the defacto complainant was not fully correct and therefore, it was remanded for denovo trial. This Judgment was challenged by the first accused along with an application to condone the delay of 7 days in preferring the revision. The defacto complainant was served. By order dated 31.07.2006, the petition to condone the delay was dismissed. The dismissal was challenged before the Hon'ble Supreme Court in S.L.P.No.5616 of 2006, in which, the Hon'ble Supreme Court by order dated 12.02.2007, condoned the delay. Thereafter, Criminal Revision was numbered as Crl.R.C.No.275 of 2007.
4. The main ground of attack in this revision petition is that the learned Additional Sessions Judge ought not to have modified the judgment of acquittal and ought not to have ordered de novo trial, as all fair and reasonable efforts were already taken to serve summons on the defacto complainant and she alone could not be served and especially, when P.Ws.1 and 2, who are the main corroborative witnesses, have turned hostile, no useful purpose would be served by ordering denovo trial. The main grievance is that the intention of the defacto complainant is to drag on the proceedings, in order to cause harassment to the accused persons and that is why, she wilfully abstained from attending the Court and therefore, the Court ought not to have ordered de novo enquiry.
5. Before discussing the merits of the order passed by the learned Additional Sessions Judge, it is necessary to find out whether the learned Magistrate has taken all fair and proper steps to get the summons served on the defacto complainant. That will be the critical factor to consider whether the order of the Additional Sessions Judge, directing de novo enquiry, would be justified or not. Apart from that, the nature of the allegations/evidence/punishment contemplated would be other factors to be taken into account to decide whether the de novo enquiry is justified or not, especially, when the Judgment of the Additional Sessions Judge is considered along after the examination of witnesses between 1998 to 2003.
6. The complaint is against the revision petitioner, E.N.Palanichamy, E.N.Chennimalai(A2) Eswaran (A3), S.K.Syed Ismail (A4) and Raja (A5), S.K.Meeran (A6), Paraipatti (A7) and 20 others. During the pendency of the trial, S.K.Meeran died. The sum and substance of the allegation is that an extent of 9+ acres in R.S.No.2751/2, 2755/3 of Balakrishnapuram, Adiyanathu Village, was in possession of the Ginning factory for a period of 60 years; 4 + acres were taken away by Railway; the factory could not be run profitably; taking advantage of that the accused persons entered into a conspiracy, created documents as if it belonged to Eswaran and were arranging to sell the property; on 12.09.1996, at about 4.00 p.m., when the defacto complainant along with Kandasamy and Ramesh visited the property, the accused persons unlawfully obstructed them, abused them using filthy language and if they are interested in the life, they should not interfere in the land and they should go back; so saying, they showed the deadly weapons, crowbar and manvetti and thus, intimidated them; fearing threat for the life, the defacto complainant came and preferred the complaint.
7. P.W.1-Kandasamy is an advocate. He was the legal advisor of East India Corporation of which the defacto complainant is the Managing Director. His specific case is that he did not know anything about the alleged occurrence and he did not know the accused persons also; he came to know about the fact that he is the witness to the occurrence only on information from the defacto complainant. He has been treated as a hostile witness and he has been cross examined by the prosecution.
7.1. P.W.2-Ramesh @ Velayutham, who is stated to be the yet another witness, who accompanied the defacto complainant at the time of occurrence, has also stated that he did not know either about the occurrence or about the accused persons. He has also been treated as hostile witness and he has been cross examined by the prosecution.
7.2. P.W.3 is the Village Administrative Officer, who has stated that the land in R.S.No.2751/2 and 2753/3 stand in the name of East India Corporation as per the village records.
7.3. P.W.4-Mohammed Meeran would state that Police did not enquire him, but, he was asked to be a witness for recovery of a board from the land near Dindigul Railway Station.
7.4. P.W.5 ? Mutthan, the other Mahazar witness, has been treated as hostile.
7.5. P.W.6 is a Surveyor functioning at the office of the District Collector, who has deposed that the lands in dispute stand in the name of East India Corporation. P.W.7 is the Investigating Officer.
8. The learned Magistrate has taken into account the evidence of P.W.1 and P.W.2 and apart from the non-examination of the defacto complainant and finding no evidence, has chosen to acquit the accused persons. In the Judgment, the learned Magistrate has mentioned that several times, summons were sent to the defacto complainant, but, she did not appear and give evidence.
9. Now, the issue to be considered is whether summons were duly served on the defacto complainant, in accordance with the procedure prescribed under the Code of Criminal Procedure and whether the defacto complainant did not appear despite service of summons.
10. Chapter VI of Cr.P.C. provides for process to compel appearance of the accused as well as the witnesses. Section 62 provides for the mode of service of summons. As per the terms of Section 62 Cr.P.C., the summon should be served by post. If the witness does not attend in spite of due service of summon, the Court may adopt coercive steps by issuing bailable warrant with a view to secure his attendance. Under Section 64 Cr.P.C., if the persons summoned cannot be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him. If service cannot be effected as provided under Sections 62-64 Cr.P.C., the serving officer shall affix one of the duplicates of the summon to some conspicuous part of the house/homestead in which the person summoned ordinarily resides; thereupon after making such enquiries as it thinks fit the Court may either declare that the summons has been duly served or order fresh service in such manner as it considers proper.
11. Under Section 69 Cr.P.C., summons can be sent by post in addition to or simultaneously to the place at which the witness ordinarily resides or carries on business or personally works for gain.
12. From the perusal of records, it is evident that summons have been issued on 12.06.2000, 28.06.2000, 12.07.2000 and those summons have been returned as a) the witness had gone to out station; b) the witness had gone to chennai; c) the relatives could not give sufficient information regarding the whereabouts of the witness. In the report dated 12.07.2000, the Serving Officer (Head Constable, Dhanasamy) has detailed the efforts taken by him to serve summons on the defacto complainant. According to his report, the witness had vacated her house and gone elsewhere according to the statement of watchman; the son of the defacto complainant had told him that the whereabouts of the mother was not known to him as he was not in talking terms with her mother; from her son-in-law, no information regarding residence could be obtained and thereafter, with the information furnished by the third party, the summon was sent to Chennai address and that was also returned; the record contains the registered post returned cover. Later on the VAO has submitted a report on 9.12.2000, stating that the Defacto Complainant is not residing at Madurai address. Under such circumstance, the Court below should have followed the other mode of service contemplated under the Code of Criminal Procedure.
13. Under Section 87 Cr.P.C., the Court has been empowered to issue warrant in lieu of or in addition to summons under the stated circumstances. The order for proclamation and attachment of property are other modes available for the Court to compel the appearance of the parties.
14. The learned Additional District Judge considered the question as to whether the trial Court was wrong in dispensing with the examination of the defacto complainant. The finding is that while the address given in the complaint and in the final report is Meenakshi Mill compound, the summons had the address as Meenakshi Mill Nilayam and therefore, the clear address is not specified in the summon. The summon has been taken to Chennai address with registered post acknowledgment due. But, this has been returned as unserved. Therefore, the finding is that the summons is not sent to the correct address. But, there is a finding in para-9 of the judgment that from the perusal of the trial Court records, the address given in the complaint and the address given in the criminal revision petition was one and the same and the defacto complainant was residing in the same address for the past 30 years. The learned District Judge came to the conclusion that the summon was not sent to the correct address. Though this finding is not correct, still the court is expected to follow other mode of sending summons, while one mode fails. That has not been done in this case.
15. The learned counsel for the revision petitioner would submit that
(a) defacto complainant ought to have the knowledge regarding the progress of the trial through P.W.1, who is the legal adviser of the company of the defacto complainant; (b) she herself filed the revision petition before the High Court, challenging the acquittal; (c) she herself contested the petition to condone the delay of 7 days in filing the criminal revision petition by the revision petitioner herein; during all these proceedings and during all these years, the defacto complainant did not ask for speedy trial of the case; neither she wanted her examination to be completed quickly; knowing fully well about the progress of the case, the defacto complainant was wilfully adopting dilly-dallying tactics to procrastinate the proceedings, in order to harass the accused persons and therefore, the order of the learned District Judge has to be set aside.
16. Considering the efforts already taken by the trial Court to get the summons served, but at the same time, considering that the prescribed procedure was not followed in sending summons and with a view to avoid further delay, this Court was able to secure the presence of the defacto- complainant and by appointment of commissioner, the evidence of the defacto- complainant has been recorded.
17. The only grievance of the defacto complainant is the non- examination of her before the trial Court. Now, opportunity has been now given to the defacto-complainant to depose regarding the occurrence.
18. This Court thought of disposing of the matter on merits, based on the evidence of defacto-complainant, but, on considering that the right of appeal available to the accused as well as to the complainant may get affected on account of disposal of the case on merits, this Court has thought it fit to remand the matter.
19. Under such circumstances, the order passed by the learned Additional Sessions Judge stands confirmed though for different reasons and different circumstances.
19.1. In order to avoid further delay in getting the defacto complainant for her evidence being recorded, this Court has taken the responsibility of getting the attendance of defacto complainant and to let her evidence recorded. This step would facilitate speedy disposal of the case.
20. In the result, the Criminal Revision Petition is partly allowed and the matter is remitted back to the Judicial Magistrate with a direction to hear the arguments based on the evidence of the defacto-complainant recorded by this Court and to pass final orders within a period of two weeks from the date of receipt of a copy of this Judgment.
To
1. The Sub Inspector of Police, District Crime Branch, Dindigul.
2. The Public Prosecutor, Madurai Bench of Madras High Court, Madurai..